January17,2018

Some lawmakers would like to see the Justice Department prosecute former spy chief James Clapper for inaccurate testimony to Congress about domestic surveillance before it's too late.

Privacy-conscious critics say looming five-year statutes of limitation for perjury and making false statements — establishing a March 12 deadline for charges — make an urgent case for action, and that nonprosecution would set a dangerous precedent that impedes oversight and executive-branch accountability.

Clapper, director of national intelligence from 2010 to 2017, testified during a March 2013 Senate Intelligence Committee hearing that the NSA was "not wittingly” collecting “any type of data at all” on millions of Americans. Months later, former NSA contractor Edward Snowden revealed secret court orders forced phone companies to turn over all U.S. call records on an “ongoing, daily basis.”

In an apology letter, Clapper wrote that he gave a “clearly erroneous” answer because he “simply didn’t think of” the call-record collection. But in an MSNBC interview he offered a different explanation, saying he gave the “least untruthful” answer because he was “asked a, ‘When are you going to stop beating your wife?’ kind of question, meaning not answerable necessarily by a simple yes or no.”

Lawmakers from both parties, but primarily Republicans supportive of new limits on surveillance, called for Clapper's prosecution during the Obama administration, without success. Several renewed their calls as the deadline nears.

"The time for the Department of Justice and the FBI to bring the accusations against James Clapper in front of a grand jury is long overdue,” said Rep. Ted Poe, R-Texas. “He and others who have held administrative power must be held accountable to the same laws that govern the people of the United States."

“Yes, he should be prosecuted," said Rep. Thomas Massie, R-Ky. "He admitted to lying to Congress and was unremorseful and flippant about it. The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community. The same goes for James Comey, who secretly leaked documents that he was not legally permitted to release."

Rep. Louie Gohmert, R-Texas, meanwhile, said Clapper “should be prosecuted for any and all lies he told to Congress.”

Rep. James Sensenbrenner, R-Wis., who warned then-Attorney General Eric Holder that nonprosecution would make new limits on mass surveillance pointless because “officials are at liberty to lie about enforcing [the law]," also renewed his call for charges.

"Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied to the Senate intelligence committee," said Sensenbrenner, lead sponsor of 2015 legislation that ended the call-record collection. "Political consideration should not affect the Department of Justice from pursuing this matter. That was true in 2013 when it happened and remains true today."

Katherine Hawkins, an investigator at the nonpartisan Project On Government Oversight, said Congress used to be better at seeking in a bipartisan manner prosecutions for perjury, particularly after the Watergate scandal in the 1970s. She said, over the years a large gap emerged between vigorously prosecution of lies to the FBI and those to Congress, something she blames on politics.

“It’s really unfortunate the extent to which there is systematic nonenforcement on the law for making false statements to Congress, and this is only one example,” Hawkins said. One reason for nonenforcement, she believes, is that “very often in high profile cases, it’s a senior member of one of the political parties who’s accused of saying something that’s not true.”

The phone-record program revealed by Snowden was unknown to many lawmakers not serving on intelligence committees or in senior leadership posts. Congress voted to end the automatic bulk collection with Sensenbrenner's USA Freedom Act after some federal courts ruled against its legality.

The NSA’s separate internet-collection programs, underpinned by Section 702 of the Foreign Intelligence Surveillance Act, also collect domestic records, but intelligence officials have struggled to quantify the number placed into databases that can be searched without a warrant. Executive branch officials argue that law is essential to preventing terrorism and the House of Representatives last week voted to renew Section 702 through 2023 without major changes. The legislation cleared a key procedural vote in the Senate Tuesday.

Evan Greer, a privacy activist with the group Fight for the Future, said Clapper’s testimony remains relevant to debate about surveillance policy.

"James Clapper lied to Congress, and to the American people, about U.S. government surveillance programs that allow agencies like the NSA and FBI to constantly monitor all of us without due process or any suspicion of wrongdoing,” she said. “Allowing the government to turn our computers and phones into spies that we take with us everywhere we go is detrimental to human rights and has a chilling effect on freedom of expression, but the worst part is that there is zero evidence that these programs have ever stopped a single violent attack.“

“What makes these mass government surveillance programs so dangerous is that they're allowed to operate without any meaningful accountability or oversight," Greer added. "The fact that James Clapper is free to go about his life while Edward Snowden is still exiled is a travesty of justice."

Although lying to Congress is rarely prosecuted, there are some recent examples.

In 2007, second-ranking Interior Department official J. Steven Griles pleaded guilty to lying to senators about links to lobbyist Jack Abramoff. Baseball player Miguel Tejada pleaded guilty to lying to Congress in 2009 after giving false testimony in 2005 about performance-enhancing drugs. Player Roger Clemens was acquitted in 2012 of similarly lying to Congress.

Still, defense attorney Mark Zaid, who works with national security whistleblowers seeking to lawfully come forward, scoffed at the idea of Clapper standing trial.

“I can't fathom he would ever be prosecuted. And I honestly don't think it's so black or white as to a conviction. It's more complicated than people see," he said.

Zaid said that “Clapper was faced with a difficult choice: reveal classified information or respond in a [manner] that is not accurate,” and that although “there is no specific national security defense” for perjury, he believes “an argument can be made that he didn't lie to Congress because that committee knew the information already. [Democratic Oregon Sen. Ron] Wyden essentially trapped him intentionally.”

A spokesman for Clapper did not immediately respond to a request for comment.

Since retiring last year, Clapper has taken a leading role criticizing President Trump on television.

Clapper told CNN in December that Russian President Vladimir Putin “knows how to handle an asset and that’s what he’s doing with the president” after a phone call between the leaders. In another interview last month, Clapper said about Trump’s firing of FBI Director James Comey, “if it walks like a duck, quacks like a duck, and flies like a duck, it sure looks like obstruction to me.”

In August, Trump lashed out on Twitter after Clapper told CNN “I really question his ability to — his fitness to be — in this office" and “I worry about, frankly, access to the nuclear codes.”

Trump responded: “James Clapper, who famously got caught lying to Congress, is now an authority on Donald Trump. Will he show you his beautiful letter to me?” Clapper said through an aide that the letter was short and not so beautiful.

The Justice Department declined to comment on whether it is weighing charges against Clapper. The department’s leader, Attorney General Jeff Sessions, was criticized by Trump last year for being “VERY weak” on Hillary Clinton and leakers, but the denunciations and promised action resulted in no additional leak charges and it’s unclear if pressure would result in a case against Clapper. Sessions also faces accusations of giving Congress misleading testimony, regarding his contact with Russia’s former ambassador.

Wyden, the lawmaker to whom Clapper gave the inaccurate answer, could not be reached for comment on whether the former national intelligence director should stand trial. But Wyden long has insisted that the mistruth was no innocent mistake. He said the question was provided beforehand, and that he asked Clapper to correct the record, in vain, afterward.

Wyden said in a recent interview that “Clapper’s lie about mass surveillance was so damaging to public trust in government” and that “Clapper said he made an error, but that’s not how I see it. He didn’t just lie to me, he lied to the American people.” Wyden told the Cipher Brief that “when politicians argue in bad faith about what laws do, it makes it easier for skeptics to dismiss everyone in Congress, in politics, as a liar. It makes it possible, even probable, for hucksters and authoritarians to take power."

January16,2018

There are dozens of immigration “reform” ideas, proposals and bills floating around, and keeping them all straight has become a major problem for conservatives concerned that the Capitol Hill Republican establishment is going to sellout America’s national sovereignty and add to the pool of low wage immigrant workers threatening the quality of life of America’s working families.

We don’t understand why Republicans think that granting amnesty to millions of illegal aliens is the top priority they should tackle before the 2018 midterms, and we are inclined to agree with Rep. Andy Biggs (AZ-5) who recently wrote on Fox News:

Extending DACA or passing a larger amnesty bill before we build the promised border wall, before we take other actions to improve border security, before we beef up internal enforcement of our immigration laws, and before we remove the incentives to come and stay in America illegally would be a colossal mistake.

You can read Rep. Biggs’ well-reasoned argument for a “wall first” strategy through this link.

Of the many bills floating around in Congress two seem to be getting traction; one is a bill that seems to satisfy Rep. Biggs’ concept of the right way to approach the DACA problem and one is definitely a total abandonment of American sovereignty and a betrayal of the future of America’s working families.

Let’s start with the worst first.

The Hill’s Jourdain Carney reports a bipartisan group of liberal senators says they have clinched a deal among themselves on an immigration reform package that does not include the wall and grants eventual citizenship to tens of millions of illegal aliens.

Sens. Jeff Flake (R-Ariz.) and Dick Durbin (D-Ill.) said Thursday the group of six senators has locked down an agreement amongst themselves on pairing a fix for the Deferred Action for Childhood Arrivals (DACA) program with a border security package.

The group of senators holding the talks — which also includes Democratic Sens. Michael Bennet (Colo.) and Bob Menendez (N.J.) and Republican Sen. Cory Gardner (Colo.) — has been negotiating for months on a deal that would include a fix for DACA.

Carney reports their bill is expected to include legalization for DACA recipients, known as Dreamers, as well as a border security package and changes to the State Department's diversity visa lottery program and family-based immigration policies.

Durbin said the bill would include a pathway to citizenship not only for current DACA recipients, but other immigrants in the country illegally who would qualify for the program.

Meanwhile, Flake indicated that any changes to family-based immigration would be narrowly focused to the current DACA population and their family members, and not apply, as some Republicans want, to the entire immigration population.

Flake also said senators had discussed reallocating some of the State Department's diversity lottery visas to people who have Temporary Protected Status (TPS), a program the Trump administration has been scaling back.

So, the Flake – Durbin bill doesn’t fund the wall, doesn’t eliminate chain migration, grants citizenship to DACA recipients and potentially to their lawbreaking parents, and doesn’t end the dangerous visa lottery program that has brought terrorists to our country.

Goodlatte and his colleagues introduced the Securing America's Future Act (H.R. 4760). This bill bolsters enforcement of existing immigration law, makes important reforms to our legal immigration programs, secures the border, and provides a legislative solution for the current beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program.

Chairman Goodlatte explained that the Securing America's Future Act includes numerous reforms to ensure the enforcement of our immigration laws in the interior of our country. The legislation aims to reduce the number of individuals who overstay their visas, requires employers to use the E-Verify system to ensure that they hire legal workers, and makes it easier to remove individuals who are gang members and other criminals. Additionally, the legislation cracks down on dangerous sanctuary cities by withholding federal grants and prevents fraud and abuse in the asylum system.

The Securing America's Future Act reforms our legal immigration programs by ending chain migration, ending the Diversity Visa program, increasing the number of green cards available for skilled workers, and creating a new, workable agricultural guestworker program for America’s farmers and ranchers.

The bill strengthens the security of our southern border by authorizing the construction of a border wall, investing in new technology, and improving, modernizing, and expanding ports of entry. The bill also calls for an additional 5,000 Border Patrol Agents and 5,000 Customs and Border Protection Officers and requires the use of a biometric Entry-Exit system at all ports of entry.

Finally, the Securing America’s Future Act allows DACA beneficiaries to receive a 3-year renewable legal status, while ensuring that gang members, individuals who have criminal convictions, or convictions in juvenile court for serious crimes are not eligible for legal status.

Several years ago, Newt Gingrich argued that it was unlikely Americans would accept the internal enforcement regime necessary to identify and forcefully deport hundreds of thousands of DACA recipients and their families, so some legislative solution should be found to allow those who were productive members of society to stay in America.

Perhaps Newt was right, and if so, then we would propose a board, of say seven combat wounded veterans, to review every application and interview those who wish to stay. Their first question might be “What have you done to deserve the honor and privilege of living in America?” Any DACA applicant who failed to get five votes would be arrested and immediately deported without appeal.

Absent such a process, it seems to us that the Goodlatte bill could be a floor, below which Congress should not go, in crafting an immigration reform bill. The bill does the best job we’ve seen of meeting President Trump’s campaign promises and the conditions set forth by the President in his recent comments on what he wants to see in an immigration reform bill.

It goes without saying that the Flake – Durbin bill is a non-starter for conservatives, and that any Senator who supports it should be a prime target for a conservative primary challenge.

January16,2018

The Supreme Court will decide whether businesses must collect sales tax on online transactions in states where they don’t have a physical presence, in a case closely watched by lawmakers, states and online retailers.

The case gives the justices a chance to reshape internet commerce, something Congress hasn’t done since the high court last ruled on the issue in 1992. Back then, the court barred states from collecting sales tax from vendors that were out of state.

But with the growth of companies such as Amazon and eBay in the past 25 years, states miss out on collecting billions of dollars in sales and use taxes annually because of that Supreme Court ruling, called Quill Corp v. North Dakota.

South Dakota, which brought the challenge now at the court, has urged the justices to overturn that ruling, describing it as “proven entirely out of date” and “a severely criticized, constitutional holding that itself warned when decided that it might later be reconsidered.” The state is particularly hard hit because it does not have an income tax, so sales taxes are critical to its economy.

That Quill decision not only deprives states and local governments of critical revenue, “but also of a power the Constitution and Tenth Amendment fully reserved to them,” South Dakota wrote in its petition.

“The damage to the Framers’ design is done when the States must go begging to Congress for powers that belong to them by right, as 25 years of congressional inaction on this issue have vividly shown,” the petition said.

Four senators and one congresswoman filed a brief urging the Supreme Court to hear the case and overrule the 1992 decision, conceding that Congress has been unable to reach a consensus on a legislative solution.

“That impasse is, in our view, largely due to the structural advantages and disadvantages created by the Quill decision,” the lawmakers state in the brief.

The court created the current status quo that helps out-of-state sellers, the lawmakers said, and therefore states must persuade Congress and the president to act when there are “built-in, indeed intended, difficulties in enacting federal laws.”

But another group of lawmakers who sponsored legislation or efforts to resolve the issue, filed a brief asking the Supreme Court to stay out of it.

“The fact that Congress thus far has not enacted a federal solution to the problem of the collection of State use taxes on sales by remote vendors should not be seen by the Court as a reason to give up on Congress,” the lawmakers wrote.

“Rather, the Court should recognize that a lasting solution will require compromise, and respect and accommodate the ongoing, diligent efforts of Congress to find a fair solution consistent with Constitutional norms,” they wrote.

Three justices had already expressed a desire to re-examine the Quill decision, including Justice Anthony M. Kennedy, who often casts the deciding vote on the nine-member court.

The court did not announce when oral arguments would be heard in the case.

January16,2018

New York Congressman Jerry Nadler, the ranking Democrat on the House Judiciary Committee and one of the chamber’s most ardent defenders of civil liberties, went to the floor of the House on Thursday with a simple request: that members reject the draconian FISA Amendments and Reauthorization Act of 2017.

Nader’s argument against this wrongheaded extension of the Foreign Intelligence Surveillance Act was pointed and powerful: “When we came to Congress, each of us took an oath to defend and protect the Constitution of the United States. I ask that each of my colleagues honor that oath today — and that we work together to defeat this bill, and to bring the right set of reforms to the floor without delay.”

He explained that the legislation, which had the backing of the White House and Republican leaders in the House, proposed to reauthorize the federal government’s surveillance powers without adequate safeguards for the privacy rights of Americans. Noting that the legislation, which is supposed to protect against terror threats, “allows the FBI unfettered access to (federal database) information, for purely domestic cases, without a warrant,” Nader asked: “What does that mean, in the era of Jeff Sessions and Donald Trump?”

He answered: “It means that absolutely nothing stops the Department of Justice from trolling the database for evidence that you use marijuana, or failed to pay your taxes, or may be in the country unlawfully, or possess a firearm that you should not have.”

Nadler was not alone in his assessment. “The government will use this bill to continue warrantless intrusions into Americans’ private emails, text messages, and other communications,” warned Neema Singh Guliani, the policy counsel with the American Civil Liberties Union. "No president should have this power.”

Those concerns were sufficient to convince a bipartisan coalition of 164 House members to oppose the assault on privacy rights. Wisconsin U.S. Reps. Mark Pocan, D-town of Vermont, and Gwen Moore, D-Milwaukee, joined Nadler on the list of 119 Democrats who voted “no.”

They were joined by 45 Republicans, including U.S Reps. James Sensenbrenner, R-Menomonee Falls, and Sean Duffy, R-Wausau. Many, though not all, of the Republican dissenters were libertarian-leaning mavericks who recognized the threat that their respected colleague from New York was warning about. Others were merely responding to the concerns expressed by constituents about the dismantling of civil liberties by an increasingly intrusive federal government.

The combination of Democratic and Republican votes against the FISA reauthorization scheme added up to 164 “no” votes.

On the other side were 256 “yes” votes. The anti-privacy votes came from 191 Republicans — including House Speaker Paul Ryan of Janesville, Glenn Grothman of Glenbeulah and Mike Gallagher of Green Bay. That was not enough to approve the FISA bill. Unfortunately, 65 Democrats — including Minority Leader Nancy Pelosi, D-Calif., and Minority Whip Steny Hoyer, D-Md. — voted with the Republicans.

If the full Democratic caucus had merely respected Nadler’s warning that the bill they were considering “pretends at reform while codifying some of the worst practices of the intelligence community,” the measure could have been beaten. Add 65 Democratic votes to the 164 “no” votes and you get 229 — a clear majority for civil liberties.

If nine abstaining Democrats — including Ron Kind, D-La Crosse — had voted “no,” the vote to affirm privacy rights could have gone as high as 238.

Defeating the FISA Amendments and Reauthorization Act of 2017 would have been a dramatic victory for the resistance not just to President Trump and Attorney General Sessions but to the authoritarian impulses of those who already have too much access to too much of our personal information. It would have also signaled that Democrats have achieved clarity, and unity, on some basic values such as respect for the Constitution, privacy rights, and civil liberties.

Noting that outspoken conservatives voted with progressive Democrats to block the FISA bill, Congressman Ro Khanna trenchantly framed the issue: “When (Michigan Republican Justin Amash and North Carolina Republican Mark Meadows, the chair of the House Freedom Caucus) vote against surveillance, but scores of Democrats vote for it, then it's fair to ask what does our party stand for? If we can’t be unified around the principle of civil liberties, then what is the soul of our party?”

The fight over whether to protect civil liberties now moves to the Senate, where Constitution-inspired Democrats and Republicans will continue the struggle.

Jerry Nadler’s message to the House holds true for the whole of the Congress: “Our right to privacy does not begin when the Department of Justice has a fully formed criminal case against us. Nor does it begin when prosecutors enter our emails and text messages into evidence against us in court. The Constitution guarantees far more than this. Our right to privacy protects us when the government first makes its decision to search our private communications for information it might find useful.”

"(This measure) falls well short of this basic guarantee,” concluded Nadler. “We therefore cannot — we must not — support this bill."

January11,2018

The House on Thursday approved 256-164 a bill to reauthorize provisions of the Foreign Intelligence Surveillance Act for another six years, putting the measure in the Senate’s hands.

The bill, backed by the Trump administration and all the U.S. intelligence agencies, would preserve the FBI and the intelligence agencies’ ability to search a surveillance database for information on Americans with minimal warrant requirements.

The approval of the legislation, backed by House Intelligence Chairman Devin Nunes and the panel’s top Democrat Adam B. Schiff, both Californians, marks a defeat for a large bipartisan group of lawmakers who proposed an amendment that would have imposed tough warrant requirements before the FBI could begin searching the surveillance database for information on Americans.

The amendment, sponsored by Reps. Justin Amash, a Michigan Republican, and Zoe Lofgren, a California Democrat, would also have ended incidental collection of information on Americans. It was rejected, 183-233, moments before final passage of the bill.

The votes on the Amash-Lofgren amendment and the bill itself followed an hour of debate that underscored that the surveillance legislation blurred the usual partisan boundaries. In an unusual alignment, House Speaker Paul D. Ryan and Minority Leader Nancy Pelosi opposed the Amash-Lofgren amendment, saying that it would weaken intelligence agencies’ ability to stop terror plots in a timely fashion.

President Donald Trump appeared to muddy the House debate when he tweeted early Thursday that the “House votes on the controversial FISA ACT,” and mused that the surveillance law could have been used by the Obama administration to spy on the Trump campaign in 2016. An hour later, he tweeted again, this time arguing that the bill “is about foreign surveillance on foreign bad guys on foreign land. We need it!”

The White House also issued a statement of policy backing the House bill and sent Chief of Staff John F. Kelly to the House to monitor the vote.

The Nunes-Schiff bill faces an uncertain future in the Senate, where Kentucky Sen. Rand Paul has said he would filibuster legislation that does not require stronger warrant requirements for searches of the surveillance database. Paul is joined by Democratic Sen. Ron Wyden of Oregon and GOP Sens. Steve Daines of Montana and Mike Lee of Utah. But a contingent of senators led by North Carolina Republican Richard M. Burr, chairman of the Senate Intelligence Committee, and the panel’s top Democrat, Virginia Sen. Mark Warner, would likely back the House-passed measure.

“The House-passed bill does absolutely nothing to defend the vast majority of law-abiding Americans from warrantless searches, and in many ways, it expands the federal government’s ability to spy on Americans,” Wyden said in a statement, while calling on the Senate to “allow real debate and amendments, and not push this legislation through in the dark.”

Shortly after the House action, the Senate agreed, 69-26, to a motion to proceed to the expected legislative vehicle for FISA amendments reauthorization.

Following the vote, Senate Majority Leader Mitch McConnell made a motion to concur in the House amendment to the bill, and filed cloture on that motion. He then filled the amendment tree, which limits amendments from being offered to the legislation.

Current law allows U.S. spy agencies to conduct electronic surveillance on foreign persons located outside the United States. Section 702 of FISA empowers the National Security Agency under a special court order to collect and analyze emails and other digital communications of foreigners living overseas, but the agency also ends up collecting data on an unknown number of U.S. persons, which it can later search without a warrant.

The agency had also been conducting so-called upstream searches of electronic communications and phone calls but ended up collecting information about Americans who were neither senders nor receivers of information from foreign targets. In April 2017, the NSA said it was suspending such “about collection” because it could not separate the communications between foreign targets and communications purely between Americans.

Backers of the Nunes-Schiff bill said it was a compromise measure between the current law and the demands of privacy advocates who said the FBI should not begin any query of the surveillance database without obtaining a probable cause warrant.

The bill would allow the FBI and intelligence agencies to search the FISA Section 702 database for information on Americans, but would require the law enforcement agencies to obtain a judicial warrant only if any of the information they find is to be used in a criminal proceeding. The bill would also allow the NSA to resume about collection after giving Congress a 30-day notice for review.

Supporters of the Nunes-Schiff bill also argued that requiring the FBI to obtain a warrant may impede fast-moving terror plots.

Backers of the Amash-Lofgren amendment said they wanted to restore the Constitution’s Fourth Amendment protections against unlawful searches.

Rep. Jim Sensenbrenner said the Nunes-Schiff bill “puts the James Madison legacy into the trash bin of history,” referring to the author of the Fourth Amendment.

The Wisconsin Republican is also the author of the Patriot Act that was passed in 2001 in the aftermath of the 9/11 attacks and gave U.S. intelligence agencies vast powers in an attempt to stop further attacks. But in the years after the law was passed, U.S. intelligence agencies were found to be snooping on Americans’ phone calls and in 2015, Sensenbrenner authored the USA Freedom Act that sharply curtailed the NSA’s ability to collect phone meta-data on Americans.

January11,2018

House Republicans on Thursday will try to reauthorize a key but controversial counterterrorism tool, despite a split among lawmakers that could end up sinking the bill.

Dozens of members are expected to vote for a bill-gutting amendment to underlying legislation reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, which allows intelligence officials to spy on communications of non-citizens outside of the U.S.

The amendment, sponsored by Reps. Justin Amash, R-Mich. and Zoe Lofgren, D-Calif., is named the USA Rights Act, and it would strictly limit the way intelligence officials can collect communications involving Americans, going far beyond the moderate limitations to the program included in the underlying bill.

For example, Amash's plan would end “abouts” collections, which go beyond searches based on the sender fields in emails and allow searches of the contents of messages. It would also stop so-called reverse targeting of Americans who are caught up in the surveillance of foreign communications, and bolster requirements for search warrants.

Passage of the amendment would essentially kill the underlying bill, which reauthorizes the spy tool with more moderate changes written by the Intelligence and Judiciary Committees. Procedurally, passing Amash's language would morph the bill into a version he and his supporters like, at which point GOP leaders would probably yank the bill from the floor, or if it somehow passed, the Senate would be unlikely to take it up in that form.

The House Freedom Caucus and other Republicans have endorsed the Amash amendment, thus splitting the GOP on the bill. And many Democrats are also expected to back the Amash provision.

“There is a big divide on our side,” Rep. Gerry Connolly, D-Va., who backs the Amash amendment, said Wednesday. “And certainly on [the Republican] side. It puts the bill in jeopardy. I think it falls short.”

The House voted to advance the legislation on Wednesday by approving debate rules, but the real battle comes Thursday, when the House votes first on the Amash amendment, and if that fails, the underlying bill.

Republicans and Democrats who back the underlying bill say the Amash amendment is unnecessary because reforms have been added to boost privacy protections, including stronger requirements for search warrants. The Amash amendment is simply an attempt to kill the bill, proponents of the underlying legislation said Thursday.

But the reforms offered in the underlying legislation were not enough for many lawmakers, who are also receiving pressure from outside groups including FreedomWorks and the ACLU, which have declared the spying tool unconstitutional.

Rep. Jim Sensenbrenner, R-Wis., a senior member of the Judiciary Committee and its former chairman, said the underlying bill includes new warrant requirements that excludes many of the kinds of searches performed by intelligence officials, sweeping in millions of innocent emails sent by Americans.

“The loopholes in this bill are too great to ensure proper protection,” Sensenbrenner said.

Rep. Mark Meadows, R-N.C., chairman of the House Freedom Caucus, said that while his faction endorses the Amash amendment, he expects Republicans will provide enough votes to pass the legislation.

Republican leaders spoke out against the Amash amendment in a closed-door meeting with rank and file lawmakers on Tuesday.

“In the end, I’m not seeing a whole lot of nervousness on behalf of the whip team,” Meadows said. “The whip team is probably giving them pretty good assurances that they are going to get a FISA reauthorization without changes.”

If the House kills the Amash amendment and passes the underlying bill, Senate Republicans said they’ll move it to the floor ahead of a Jan. 19 deadline.

Senate Majority Whip John Cornyn, R-Texas, said in that case, the Senate is likely to pass the measure, which would clear it for President Trump’s signature. The Senate may consider the measure as a standalone bill or attach it to a bill to temporarily fund the government, which is expected next week ahead of a Jan. 19 government funding deadline.

But there is also opposition in the upper chamber. About two dozen lawmakers in both parties have signed onto legislation offered by Sen. Ron Wyden, D-Ore., which mirrors the Amash bill.

“Politicians who support broad, unchecked government surveillance authorities are once again rushing to approve a sweeping program at the expense of Americans’ personal liberty and constitutional rights,” Wyden said of the House underlying measure in an opinion piece published on thecipherbrief.com.

January11,2018

Civil libertarian(ish) groups on both sides of the aisle aren’t happy with the House’s approval of the new FISA authorization. FreedomWorks heaped loads of criticism on the House, with Vice President of Legislative Affairs Jason Pye saying the Constitution doesn’t matter to supporters.

It’s a dark day for the Bill of Rights. Sadly, a majority of the House Republican Conference and many Democrats chose to ignore the Fourth Amendment in today’s votes. The erosion of the civil liberties protected by the Bill of Rights is clearly a bipartisan problem. We thank Reps. Justin Amash, Andy Biggs, Jim Jordan, Thomas Massie, Jim Sensenbrenner, and others who took a stand today for the Fourth Amendment.

Pye is also promising FreedomWorks will do all it can to support Senators Rand Paul and Mike Lee in their fights to rein in the NSA. The ACLU is also promising to help kill the FISA bill in the Senate because they believe it gives the presidency too much power. Cato Institute policy analyst Patrick Eddington, who was heavily featured in my piecelast Sunday looking at the bill, emailed me to say he’s still hopeful there will be Senate reform.

[T]he House of Representatives voted to not only reauthorize the Foreign Intelligence Surveillance Act Section 702 mass surveillance program, but to effectively expand it. It’s literally no stretch to say that the bill the House just approved effectively gives greater privacy protections to criminal suspects than to innocent Americans. It allows the federal government to continue to collect, store, and search the communications of Americans with no connection to criminal activity. This program has never been properly audited for its constitutionality, effectiveness, or costs, and the House leadership clearly has no interest in doing so. The surveillance reform battle now moves to the Senate, where the issue is very much in doubt.

It appears the focus on killing the bill will be in the Senate, where Paul, Lee, and Oregon Democrat Ron Wyden have been fighting for reforms for years. Paul and Wyden have promised to filibuster, while Lee is teaming up with Vermont Senator Patrick Leahy on the USA Liberty Act. The latter are hoping Mitch McConnell will let them offer amendments to the bill, including their bill.

Ed pointed out this morning that Senate leadership may do their best to avoid another messy fight on FISA by connecting it with the omnibus spending bill. It’s good strategy but shows just what’s wrong with Washington by using cheap tactics to get something passed. Before people say, “Drain the swamp! Only Trump can save us!”, it should be pointed out the president endorsed the bill this morning despite an earlier tweet suggesting he wasn’t in favor of it. My guess is Chief of Staff John Kelly got in Trump’s ear and told him how “important” the bill was to Trump’s campaign promise of keeping terrorists out, even if it’s debatable whether NSA spying has really saved America from attack.

I understand why the spying bill has support from defense hawks but they’re misguided in their belief that it’s worth sacrificing a little bit of the Constitution to keep America safe. The problem with watch lists, data collection, and spying is the fact that innocent Americans get caught up in the very flawed system. The government doesn’t go after individuals but the telecom industry, and it doesn’t behoove the industry to actually fight the government because they’re dependent on various different cronyistic pieces of legislation to help their bottom line (and, no, I’m not talking about lowering corporate tax breaks, I’m talking about specific pieces of “stimulus” legislation). Then there’s the fact that the list is sitting in some government database, leaving it open to attack from hackers. No server is every truly “safe” and the hacks from the last few years have proven it.

The big issue with the FISA bill is the fact that it violates the Constitution, specifically the Fourth Amendment. Supporters point out federal courts have ruled before that “third party data” doesn’t violate the Constitution, but the courts erred in their thinking (which, frankly, isn’t surprising given that petitioners are asking the government to rule the government broke its own rules). There actually is a case on the issue making its way through the courts right now. It’ll be interesting to see what happens at the Supreme Court.

The good news: The fight over FISA isn’t over, and there’s a chance the reauthorization bill will die in the Senate.

The bad news: It’ll probably pass anyway.

But this is another example of what happens when the government decides it needs to get its sticky fingers into everyone’s business. Benjamin Franklin once wrote, “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” He may have been talking about a tax dispute but he’s still right.

January9,2018

Brookfield, WI—Today, Congressman Jim Sensenbrenner announced the nominations of students from Wisconsin’s Fifth Congressional District for appointments to the U.S. service academies.

Rep. Sensenbrenner: “These students have exceptional records, strong character, and great potential. They deserve commendation for choosing to pursue a career of service to our nation as future military leaders. I congratulate them on this achievement and have full confidence that they will make their families, communities, and country proud.”

He also offered: “I’d like to thank the volunteers on the Academy Selection Committee for all their time and efforts in selecting the most qualified candidates from an incredibly competitive field of applicants.”

Nominees are designated as “principal” or “alternate.” Principal nominees who meet academic, physical, and medical standards set by each academy are guaranteed an appointment to that academy. Alternate nominees compete for available slots should any principal nominees choose not to accept or fail to qualify for their appointment. Additionally, alternate nominees are part of a pool of applicants from which the academies select the incoming class.

The United States Merchant Marine Academy does not differentiate between principal and competing alternate nominations.

This year, Congressman Sensenbrenner nominated thirty-four students, including four principal nominees. They are as follows:

Principal Nominees:

William Kitzhaber of Watertown has been named a principal nominee to attend the United States Air Force Academy in Colorado Springs, CO. William, son of Peter and Michelle Kitzhaber, attends Watertown High School.

Sophie Tasker of Elm Grove has been named a principal nominee to attend the United States Naval Academy in Annapolis, MD. Sophie, daughter of Harold and Sibylle Tasker, attends Brookfield East High School.

Michael Kahler of Brookfield has been named a principal nominee to attend the United States Military Academy in West Point, NY. Michael, son of Russell and Susan Kahler, attends Marquette University High School.

Joseph Meier of Pewaukee has been named a principal nominee to attend the United States Military Academy in West Point, NY. Joseph, son of Frederick and Amy Meier, attends Arrowhead High School.

Competing Alternate Nominees and United States Merchant Marine Academy Nominees:

Jared Albrecht of Waukesha has been named a nominee to the United States Merchant Marine Academy in Kings Point, NY. Jared, son of Chad and Dawn Albrecht, attends the Kettle Moraine School for Arts and Performance.

Sabrina Andringa of Waukesha has been named an alternate nominee to the United States Military Academy in West Point, NY. Sabrina, daughter of Timothy and Robin Andringa, attends Waukesha South High School.

Isaac Barta of New Berlin has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO, the United States Naval Academy in Annapolis, MD, and the United States Military Academy in West Point, NY. Isaac, son of Jeffrey and Melissa Barta, attends Catholic Memorial High School.

August Beyer of Slinger has been named an alternate nominee to the United States Naval Academy in Annapolis, MD. August, son of Paul and Julie Beyer, attends Slinger High School.

Alexander Carter of Oconomowoc has been named an alternate nominee to the United States Naval Academy in Annapolis, MD. Alexander, son of Paul and Angelique Carter, attends Oconomowoc High School.

Thomas Cullen of West Bend has been named an alternate nominee to the United States Military Academy in West Point, NY. Thomas, son of Stephen and Sherry Cullen, attends Living Word Lutheran High School.

Nicholas Frigerio of Brookfield has been named an alternate nominee to the United States Naval Academy in Annapolis, MD. Nicholas, son of Joe and Liz Frigerio, attends Lake Country Lutheran High School.

Zachary Hastings of Hartland has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO. Zachary, son of Charles Hastings and Laura Lien, attends Arrowhead High School.

Camille Herman of Brookfield has been named an alternate nominee to the United States Naval Academy in Annapolis, MD. Camille, daughter of Timothy Herman and Janet Perrie, attends Brookfield Central High School.

Jonah Hestetune of Menomonee Falls has been named an alternate nominee to the United States Military Academy in West Point, NY. Jonah, son of Marlon Hestetune and Jeanette Prince-Hestetune, attends Menomonee Falls High School.

Andrew Hruz of Wauwatosa has been named an alternate nominee to the United States Naval Academy in Annapolis, MD and the United States Military Academy in West Point, NY and a nominee to the United States Merchant Marine Academy in Kings Point, NY. Andrew, son of Benjamin Hruz and Ann Torcivia-Hurz, attends Marquette University High School.

Samantha Kruk of Menomonee Falls has been named a nominee to the Merchant Marine Academy in Kings Point, NY. Samantha, daughter of Mark and Kristin Kruk, attends Menomonee Falls High School.

Abbey Lippold of Nashotah has been named an alternate nominee to the United States Naval Academy in Annapolis, MD and the United States Air Force Academy in Colorado Springs, CO. Abbey, daughter of James and Shannon Lippold, attends Arrowhead High School.

Arianna Mansavage of Jefferson has been named a nominee to the United States Merchant Marine Academy in Kings Point, NY. Arianna, daughter of Michael and Rosemarie Mansavage, attends Fort Atkinson High School.

Katya Miller of West Allis has been named an alternate nominee to the United States Military Academy in West Point, NY. Katya, daughter of Dominic and Michelle Miller, attends West Allis Central High School.

Troy Nachtigal of Fort Atkinson has been named an alternate nominee to the United States Military Academy in West Point, NY. Troy, son of Terry and Julie Nachtigal, attends Fort Atkinson High School.

Michael Naze of Oconomowoc has been named a nominee to the United States Merchant Marine Academy in Kings Point, NY. Michael, son of Scott and Richelle Naze, attends Catholic Memorial High School.

Joseph Neimon of Delafield has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO. Joseph, son of Michael and Kerry Neimon and graduate of Kettle Moraine High School, attends the University of Wisconsin-Madison.

Joseph Nunez of Greenfield has been named an alternate nominee to the United States Naval Academy in Annapolis, MD and a nominee to the United States Merchant Marine Academy in Kings Point, NY. Joseph, son of Edmund and Patricia Nunez, attends Marquette University High School.

Emma Oleniczak of New Berlin has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO. Emma, daughter of Michael and Karin Oleniczak, attends New Berlin Eisenhower High School.

Brandon Prevo of Delafield has been named an alternate nominee to the United States Military Academy in West Point, NY and a nominee to the United States Merchant Marine Academy in Kings Point, NY. Brandon, son of Tim Prevo and Amy SoHang Choi, attends St. John’s Northwestern Military Academy.

Timothy Prevo of Delafield has been named an alternate nominee to the United States Military Academy in West Point, NY and a nominee the United States Merchant Marine Academy in Kings Point, NY. Timothy, son of Tim Prevo and Amy SoHang Choi, attends St. John’s Northwestern Military Academy.

John Reardon of Oconomowoc has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO. John, son of Kevin and Christine Reardon, attends Mukwonago High School.

Bret Scarpaci of West Allis has been named an alternate nominee to the United States Military Academy in West Point, NY. Bret, son of James Scarpaci and Janet Dewey and graduate of Nathan Hale High School, attends Marquette University.

Daniel Schulz of Brookfield has been named a nominee to the United States Merchant Marine Academy in Kings Point, NY. Daniel, son of Peter and Michelle Schulz, attends Brookfield East High School.

Jessica Steger of Iron Ridge has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO and the United States Military Academy in West Point, NY. Jessica, daughter of Steve Steger and Kristine Kanitzer, attends West Bend East High School.

Max Stergiades of Brookfield has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO. Max, son of Nicholas and Peggy Stergiades and graduate of Brookfield East High School, attends the United States Air Force Academy Preparatory School.

Bryce Texeira of Waukesha has been named an alternate nominee to the United States Naval Academy in Annapolis, MD. Bryce, son of David and Lisa Texeira, attends Waukesha West High School.

Austin Walsh of West Bend has been named an alternate nominee to the United States Air Force Academy in Colorado Springs, CO and the United States Military Academy in West Point, NY. Austin, son of Gary Walsh and Camie Williams-Walsh and graduate of Slinger High School, attends Iowa State University.

Noah Zenker of Hartland has been named an alternate nominee to the United States Military Academy in West Point, NY. Noah, son of Kurt and Natalie Vitchar Zenker, attends Arrowhead Union High School.

Congressman Sensenbrenner is currently accepting applications for students seeking a nomination to attend a service academy in the fall of 2019. More information about the process can be found HERE. Additional questions can be directed to Congressman Sensenbrenner’s Brookfield office at (262) 784-1111.

December21,2017

MADISON, WI —The U.S. Air Force said Thursday that Wisconsin's Truax Field Air National Guard base in Madison will be one of two sites to station next-generation F-35 aircraft, beginning in 2023.

In a news release, Air Force officials said that deployment of the F-35 is "critical to the family of systems" needed to penetrate enemy air defense systems.

"Putting F-35s at these two Air National Guard bases continues our transition into the next generation of air superiority," said Air Force Chief of Staff Gen. David L. Goldfein in a prepared statement on Thursday. "It helps ensure we can always offer the Commander-in-Chief air power options and be ready to penetrate any enemy air defenses, hold any target at risk and go when and where the president tells us to go. We're the options folks. The F-35 is critical to the family of systems we need to accomplish this mission for the nation now and in the future."

In an undated letter submitted to General David L. Goldfein, Vice Chief of Staff of the U.S. Air Force, senators Ron Johnson and Tammy Baldwin, congressmen Paul Ryan, Mark Pocan, Reid Ribble, James Sensenbrenner, Ron Kind, Gwen Moore, Sean Duffy and Glenn Grothman stated that "The capabilities and assets of the 115th Fighter Wing and Truax Air National Guard Base include in their unique ability to provide tremendous airspace, that it schedules and controls, over its network of integrated ranges and its unencumbered Military Operational Airspace."

The Air Force expects the F-35s to begin arriving at Truax Field in early 2023. The Air Force also evaluated Gowen Field Air Force Base in Idaho, Selfridge Air Force Base in Michigan and the Jacksonville Air Guard Station in Florida. The Air Force said those bases were reasonable alternatives, but not preferred.

"This is a big day for Wisconsin's military community and the whole region. The Air Force agrees that the great men and women of the Wisconsin Air National Guard are uniquely prepared to host the F-35," Speaker Paul Ryan said in a prepared statement. "This decision boosts the Truax base, which is already such an integral part of the area and contributes a great deal to our national security. I want to congratulate all the people in the community who worked tirelessly to make this possible, but most importantly the men and women of the 115th Fighter Wing, who represent us with integrity and excellence every single day."